Estate Planning for Your Digital Afterlife

Over the weekend I attended parts of a great symposium put on by the Miami Law Review on social media and the law.

The Law Review had drafted me to moderate a panel on “Will You Have a Digital Afterlife?” It was an interesting experience: the estate planning/probate version of privacy issues is a sort of funhouse mirror version of how I usually think about digital privacy: everything I recommend to people — e.g. strong passwords, strong encryption — can make digital probate more difficult.

The first complication is that we may not know with much certainty what the decedent wanted. Did he want the heirs to have full access to his encrypted hard drive? What if there’s a porn collection?

Second, how about the email account — it may have important information about what bills need to be paid, but it might also have a secret correspondence with far-out political groups or a mistress that the decedent might not have wanted the survivors to see. Online social media accounts have additional complexities as some providers take the view that the contract terminates with death and thus make no attempt to preserve, or may even flush, the contents. Others have contract terms of service that routinely deny access to surviving family members, if only because that blanket rule may make life easier for the provider.

Laws prohibiting various sorts of unauthorized access, written with the living in mind, add another level of complexity as innocent attempts by family members to find out about the credit card bill or the phone bill may amount — in formal terms at least — to criminal actions punishable (in theory) like the worst forms of hacking; computer intermediaries (and lawyers!) may justly be nervous about enabling such access without clear advance directives from the deceased.

The panelists — Christina L. Kunz, James Lamm, Michael J. Mcguire, and Damien A. Riehl — did an excellent job of introducing this complex area of law to an audience composed mostly of neophytes like me.

I came away from James Lamm’s talk, for example, persuaded that I should execute an ‘Authorization and Consent for Release of Electronically Stored Information’ and also add a codicil to my will that covers access to electronic material stored in the cloud or elsewhere.

James Lamm, by the way, blogs at Digital Passing.

[Note (2/21): edited to conform to a very polite copyright-related request from Mr. Lamm. You’ll have to wait for his article, or consult him, for more details.]